Are the DWI Laws Unconstitutional in 2008? – A Review of Minnesota’s Statute
It would seem that the fabric of Minnesota’s DWI laws is slowly unraveling as new challenges are made to the laws and how they comply with constitutional protections. As a consequence, persons charged with DWI offenses in Minnesota have a number of viable defenses at their disposal and should ALWAYS consult with an attorney before entering any plea.
One of the major issues presently being litigated is whether Minnesota’s laws unconstitutionally coerce persons arrested to provide breath, blood or urine samples for alcohol testing. As many Minnesotans are aware, when a person is arrested for suspicion of drunk driving, they are read an implied consent advisory which is a short statement of their rights. That advisory informs the driver that they have a right to consult a lawyer before submitting to any testing. However, if they refuse to submit to breath, blood or urine testing, they can be charged with a criminal offense. In fact, the criminal offense charged, which is a refusal to test, often has more harsh consequences than being charged with a DWI. Specifically, a refusal may turn a misdemeanor DWI into a gross misdemeanor refusal. The former carries with it up to 90 days in jail and a $1000 fine, where the latter may be punished by up to 1 year in jail and a $3000 fine. additionally, the license revocation for most first offense DWI’s is generally 30 to 90 days. For a refusal, that revocation period is one year.
This is basic because challenges to the law are based upon the State and Federal constitutional protections to be free from unreasonable searches and seizures. The United States Constitution’s Fourth Amendment guarantees “[t]he right of the people to be obtain in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. The Minnesota constitution contains a similar provision. Minn. Const. art. I, § 10. Minnesota case law has consistently stated that a search and seizure conducted without a warrant is per se unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).
When you consider that a breath, blood or urine test is, indeed, a search for inculpatory evidence, then constitutional protections must be applied. Both federal law and State law have historically recognized that seeking a sample of breath, blood or urine is, in fact a search as the term is defined in constitutional law. this was established in Skinner v. Ry. Labor Executives’ Ass’n., 489 U.S. 602 (1989). and, in Minnesota in State v. Shriner, 739 N.W.2d 432 (Minn. App. Oct. 2, 2007).
The end consequence is that an Officer seeking to test a driver’s blood, urine or breath to determine the presence of alcohol must either have a warrant to search and seize that sample or have some valid exception to the warrant requirement. State prosecutors would argue that there is a viable exception for exigency. Exigency requires that there is some immediate need to seize the evidence or it will be gone. In other words, some emergency.
The problem with that argument is that generally, there is plenty of time for an officer to seek and acquire a warrant after a person is arrested for a DWI. Police have up to two hours after the driving conduct to acquire a sample that would be admissible in court as evidence of a DWI and their are always estimate on call for that precise purpose. When calculating whether the situation presented exigent circumstances, Minnesota courts examine the totality of the circumstances. State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984).
Minnesota courts have noted that factors to consider when calculating whether exigent circumstances are present for an officer to search include: (1) the time that has passed while the accused is transported to the hospital, (2) the need for the officer to probe the scene, (3) the evanescent character of alcohol in the blood, (4) the availability of the accused in the hospital, and (5) the time necessary to acquire a warrant, including a telephonic warrant. See, e.g., State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978); State v. Shriner, 739 N.W.2d 432, 436 (Minn. App. 2007), review granted (Dec. 11, 2007).
The fact that seeking a warrant is inconvenient, should not be a basis to ignore constitutional protections. Of course, it would be extremely scarce for a police officer to force a driver to provide a breath, blood or urine sample and, presently, there is no need since the driver may be charged with (arguably) a greater offense should they refuse to provide a sample for testing. This is whether Minnesota’s Implied Consent statute runs afoul of constitutional protections.
A second exception to the warrant requirement is consent. Prosecutors will argue that the when a driver is read the implied consent advisory and consents to a breath, blood or urine test, they fall with in an exception to the warrant requirement. This is an established exception to the warrant requirement under State v. Hanley , 363 N.W.2d 735, 738 (Minn. 1985). However, to be valid (and consequently fall within the exception), such consent must be “freely and voluntarily” given as indicated in State v. George , 557 N.W.2d 575, 579 (Minn. 1997). The U.S. Supreme Court said it best in Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), stating that “an officer has a right to ask to search[,]¼an individual has a right to say no.” Id.
So, is it really freely given consent when a police officer tells a driver that they: (1) may choose to submit to breath, blood or urine testing BUT, (2) if they do not, they will be charged with a crime?
The state of Minnesota has begun to review this issue and it appears presently that the answer may be “no.” In State v. Netland, 742 N.W.2d 207, 214 (Minn. App. 2007) pet. for rev. granted (Feb 27, 2008), the court of appeals held that “because an individual does not have the right to say no to a chemical test, and indeed, is unprotected to criminal penalties for doing so, the ‘consent’ implied by law is insufficiently voluntary for Fourth Amendment purposes.” Unfortunately, the court backtracked a little bit in 2008 when in State v. Pernell, 2008 WL 123944 (Minn. App. 2008) pet. for rev. granted (March 26, 2008), it decided that the “consent” under the Implied Consent statute is voluntary. Nonetheless, this remains a viable defense since the Supreme Court of Minnesota promptly accepted review both situations. Presently oral arguments are schedule for September.
Some state court Judges are already acting in reliance on Netland and ruling in favor of DWI defendants on a constitutional basis by suppressing breath, blood and urine tests in DWI proceedings as evidence that was seized in an unconstitutional fact.